Chikomba Rural District Council v Kenneth Mundopa and Deputy Sheriff Chivhu

The first respondent, a state certified nurse, worked at Chivhu General Hospital. There was a dispute between the applicant and the Ministry of Health and Child Welfare regarding who the first respondent's employer was. The first respondent went AWOL from 27 October 2008 to 11 March 2010. The Ministry of Health constituted a board which recommended the first respondent be charged with misconduct and discharged from service. While misconduct charges were pending, the first respondent instituted proceedings against the applicant under s 93 of the Labour Act alleging unfair labour practice. The matter was referred for compulsory arbitration under s 98, and the arbitrator made an award adverse to the applicant in its absence. The applicant appealed to the Labour Court. During the pendency of the appeal, the first respondent registered the arbitral award in the High Court and obtained a writ of execution. The second respondent (Deputy Sheriff) attached applicant's property including tractors, trailers, computers, office equipment and a truck on 17 January 2012. The applicant filed an urgent chamber application on 24 January 2012 seeking to stop execution of the arbitral award.

• Whether the matter was urgent
• Whether the applicant was the first respondent's employer
• Whether the applicant's appeal against the arbitral award was properly before the Labour Court
• Whether execution of an arbitral award can proceed when an appeal has been noted against it

The court granted the urgent chamber application in terms of the draft order, ordering the first and second respondents to stop executing on the arbitral award and directing the second respondent to restore any attached goods to the applicant's premises.

Where an arbitral award made under s 98 of the Labour Act has been appealed against, the award is not capable of being executed. Since s 98(10) of the Labour Act, unlike s 92E, does not contain express provisions for the suspension of an arbitral award when appealed, the common law principle that the noting of an appeal suspends the operation of a judgment automatically applies. Parliament does not intend to alter the common law unless it expresses its intention with irresistible clarity.

The court observed that if it were found that the applicant was not the first respondent's employer but rather the Ministry of Health/Public Service Commission, then the invocation of the Labour Act instead of the Health Services Regulations SI 117/06 would mean the warrant of execution was borne out of a flawed process and should not be carried to fruition. The court also noted that the balance of convenience favoured granting the provisional order to avoid possible irreparable harm to the applicant. The court commented that it would have been premature for the applicant to approach the court on an urgent basis at the stage when the application for registration of the award had merely been served upon it.

This case reinforces the important principle in Zimbabwean labour law that an arbitral award issued under s 98 of the Labour Act cannot be executed once an appeal has been noted against it. The judgment clarifies the distinction between different sections of the Labour Act regarding suspension of awards and establishes that where the statute does not expressly provide for suspension (as in s 98), the common law principle of automatic suspension upon appeal applies. This is significant for employment disputes and the enforcement of arbitral awards, protecting parties from irreparable harm during the appeal process.